TOM G. DAVIS, Judge.
Appeal is taken from a conviction for possession of more than four ounces of marihuana. Art. 4476-15, Sec. 4.05(a) & (b)(1), V.A.C.S. The jury assessed punishment at ten years and a $5,000 fine.
The appellant and his wife were tried together in a joint trial. As hereinafter noted, a mistrial was declared as to appellant's wife.
The argument complained of occurred during the prosecutor's final argument. The record reflects the following occurred during the argument:
While the foregoing argument forms the basis of appellant's ground of error, we note that the argument which followed resulted in a mistrial being granted as to appellant's wife.
The trial court granted a mistrial in the wife's case. The record indicates that the judge ordered the jury to disregard the statement as to the appellant but denied a motion for mistrial.
We first note that the objection to the argument in question was overruled. Therefore we are not presented with a question of whether a timely instruction cured the error in question.
The State maintains that "those two people" referred to the appellant's attorneys. Assuming, arguendo, that this is true, the remark was still improper.
The State may not comment on the accused's failure to testify. Tex.Const., Art. I, Sec. 10; Art. 38.08, V.A.C.C.P., construed in Pollard v. State, Tex.Cr.App., 552 S.W.2d 475; Dubose v. State, Tex.Cr.App., 531 S.W.2d 330; Bird v. State, Tex.Cr.App., 527 S.W.2d 891; U.S.Const., Amend. V, Construed in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The comment must be more than an implied or indirect allusion to the defendant's silence, however. Pollard v. State, supra; and Bird v. State, supra. The remark, when viewed from the jury's viewpoint, must have necessarily referred to the defendant. Griffin v. State, Tex.Cr.App., 554 S.W.2d 688; Nowlin v. State, Tex.Cr.App., 507 S.W.2d 534. But an indirect comment that labels certain evidence as uncontroverted, unrefuted, or uncontradicted is impermissible if only the
Read in the light most favorable to the State's interpretation of this argument, the prosecution simply posed the rhetorical question of why the appellant had such a large quantity of marihuana, and noted that no explanation was made. The inference from this argument was that it was a quantity that would be possessed only for the purposes of sale. Only the appellant or his wife, who was a co-defendant, could offer the explanation called for. We find that the argument was an allusion to the appellant's and his wife's failure to testify and requires reversal.
The judgment is reversed and the cause remanded.